N4838

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NO. 910 OF 2011

BETWEEN:

WILLIAM MAKI for himself and for and on behalf of Wilson Maki, Junior Maki & Enoch Maki and as next friend of Miriam Maki & Irene Maki
Plaintiff

AND:

DR MICHAEL DOKUP
First Defendant

AND:

DR CLEMENT MALAU
Acting Secretary for Health
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2012: 20th & 27th July

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Default judgement – Principles - Claim for medical negligence causing death – Vague pleadings – Whether reasonable cause of action disclosed - Interest of justice - Default judgment refused

Facts:

The husband and children of a deceased woman who died from mouth cancer filed an action claiming damages for her death as a result of medical negligence by the doctors who had attended her. When the defendants failed to file their defence application was made for default judgement. 

Held:

(1)	The Court may exercise its discretion against ordering default judgement where pleadings are so vague or the statement of claim does not disclose a reasonable cause of action. 
 
(2)	A claim for medical negligence raises serious allegations and the interest of justice warrants the allegations to be properly tried and proved before judgment on the merits. 

Cases cited:

Urban Giru v Luke Muta (2005) N2877
Kante Mininga v The State & Others (1996) N1458
Philip Leli Takori v Simon Yagari (2010) N3823
Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773

Counsel:

Mr P Othas, for the plaintiff
No appearances for the defendants 

27th July, 2012

1.	KARIKO J: The plaintiffs are the husband and children of one Regina Maki who died from mouth cancer and this proceeding alleges that the death resulted from medical negligence. 

2.	The particulars of medical negligence include:

(a)	Failure by her initial doctor in Mt Hagen, Dr Dokup to properly diagnose Mrs Maki's illness, conduct appropriate medical tests on her, and administer the correct medication/treatment; and

(b)	Failure by doctors in Goroka and Port Moresby to immediately operate on Mrs Maki when she was subsequently referred to the General Hospitals there.

3.	The plaintiffs claim vicarious liability on the part of the second and third defendants on the basis that:

(a)	The acting secretary for Health is directly responsible for the conduct of Dr Dokup and the doctors at the Goroka and Port Moresby General Hospitals; and

(b)	The State employs the doctors who attended to Mrs Maki at the General Hospitals in Mt Hagen, Goroka and Port Moresby. 

Default judgement

4.	The plaintiffs have applied for default judgement to be entered against the defendants for failure to file their defence. 

5.	The preconditions for the entry of default judgement are well-settled and are clearly listed by Cannings J in Urban Giru v Luke Muta (2005) N2877.

6.	I am satisfied that the preconditions have been met by the applicant. But the law is that even if a plaintiff is entitled to default judgement, its grant is discretionary. 

Claim against Dr Malau

7.	Cases where the court may exercise its discretion against ordering default judgement include whether the pleadings are so vague or the statement of claim does not disclose a reasonable cause of action; Kante Mininga v The State & Others (1996) N1458. 

8.	In respect of the claim against the second defendant, the Statement of Claim simply alleges that Dr Malau as the Acting Secretary for Health is "directly responsible for the affairs and the conduct of all the doctors employed by the State through the Health Department". This pleading is very vague and I do not consider it sufficient to establish a cause of action against Dr Malau. I would not only refuse to enter default judgement against Dr Malau but order that the proceeding against him be dismissed pursuant to O12 r 40(1)(a) of the National Court Rules for not disclosing a reasonable cause of action.

Claim against the State

9.	I also find that the Statement of Claim does not disclose sufficient particulars as to how it is claimed that the State is liable for the alleged negligence and wrongful conduct of Dr Dokup. 

10.	The Statement also does not name the doctors alleged to have been negligent in Goroka and Port Moresby. These doctors must be named for the requisite nexus to be established between them as the alleged wrongdoers and the State before a claim for vicarious liability can succeed: Philip Leli Takori v Simon Yagari (2010) N3823. 

11.	The plaintiffs have also not cited the relevant provisions of the Claims By and Against the State Act and the Wrongs (Miscellaneous Provisions) Act which they plead as the applicable statutes upon which vicarious liability is claimed against the State. 

12.	I conclude therefore that the pleadings do not fully or properly disclose a reasonable cause of action against the second and third defendants, but the pleadings are not so vague or hopelessly defective that they cannot be cured by amendment.

Interest of justice

13.	In Bala Kitipa v Vincent Auali, Supply and Tenders Board of Western Highlands Provincial Government and Others (1998) N1773, Injia J held that where serious allegations of fraud or deceit are claimed, the interests of justice may require those allegations to be proved by evidence in a trial before judgment is given on the merits. In Urban Giru v Luke Muta (supra) Cannings J confirmed that interest of justice is a proper consideration in deciding whether or not to order default judgement. 

14.	In the present case, the plaintiffs allege death was caused by medical negligence which is a very serious claim indeed. I am of the view that the interest of justice warrants the serious allegations to be properly tried and proved before judgment on the merits. 

15.	The interest of justice also requires the plaintiffs to be given the opportunity to amend its Statement of Claim. 

Orders

16.	 Accordingly, I order as follows:

1.	The plaintiffs' application for default judgement is refused.

2.	The proceeding against the second defendant is dismissed.

3.	Costs in relation to this application shall be in the cause.

4.	The plaintiffs shall file and serve an amended Statement of Claim by 10 August 2012.

5.	The defendants shall thereafter file their defence within 44 days after being served the amended Statement of Claim.

6.	Pleadings shall then follow in accordance with the National Court Rules.

7.	The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith. 

___________________________________________________

Paul Othas Lawyers: Lawyer for the Plaintiffs